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Court rules against Wisconsin's, Indiana's gay marriage bans

Judi Trampf (left) and her partner Katy Heyning speak during a news conference in February by the American Civil Liberties Union about the lawsuit challenging the Wisconsin’s 7-year-old ban on gay marriage.

The nation took another big stride Thursday toward a historic legal showdown over gay marriage, as a federal appeals court in Chicago unanimously struck down bans on same-sex unions in Wisconsin and Indiana.

The decision by a three-judge panel of the U.S. 7th Circuit Court of Appeals upholds lower federal court decisions in Madison and Indianapolis and helps set up a seemingly inevitable ruling by the U.S. Supreme Court on whether gay marriage bans violate the U.S. Constitution. In the meantime, the decision does not immediately take effect, but it does increase at least marginally the chances that Wisconsin's case is heard by the nation's highest court.

"A degree of arbitrariness is inherent in government regulation, but when there is no justification for government's treating a traditionally discriminated-against group significantly worse than the dominant group in the society, doing so denies equal protection of the laws," Judge Richard Posner wrote in the 40-page decision.

At oral arguments last week, Posner, one of the most prominent federal judges in the country, had sharply questioned the states' arguments that the government and public had a legitimate interest in maintaining marriage in its traditional form.

Also hearing the case were Judges David Hamilton and Ann Claire Williams. Posner was appointed to the appeals court by President Ronald Reagan, Williams by President Bill Clinton and Hamilton by President Barack Obama.

GOP Gov. Scott Walker had no comment on the decision while Dana Brueck, a spokeswoman for Wisconsin Attorney General J.B. Van Hollen, a Republican, said the state will appeal.

"The attorney general has always believed that this case will ultimately be decided by the United States Supreme Court," Brueck said.

At a news conference at Milwaukee's LGBT Community Center, some of the plaintiffs were there, including Karina Willes and Kami Young and their infant daughter, Olivia.

"The thing that's most important is to provide a stable home for our daughter," said Willes. She noted that when the baby was born she was not allowed to put her name on the baby's birth certificate.

Julaine Appling, president of Wisconsin Family Action and a vocal supporter of the gay marriage ban, said she was surprised by the speed of the decision, but not the outcome, after hearing the judges' views during arguments last week.

"Essentially what the judges are saying is the 1.26 million voters who voted on this in 2006 are a bunch of homophobic, irrational bigots," Appling said. "I absolutely don't believe that, but that's what the judges are saying."

If Wisconsin and other states continue their losing streak in the courts, then opponents of gay marriage should seriously consider amending the U.S. Constitution to bar the practice, she said.

Madison attorney Tamara Packard saidfor now Wisconsin and Indiana same-sex couples cannot get married. Packard has worked on behalf of gay and lesbian couples but is not directly involved in the cases addressed by the appeals court.

The ruling will not go into effect for 21 days, and during that time the states can seek a rehearing from the three-judge panel or from the full 10-member appellate court, according to Larry Dupuis, the legal director for the American Civil Liberties Union of Wisconsin, which represented the couples.

The states can also appeal the decision to the Supreme Court and seek a longer stay of the decision through the appeals process. Given what has happened in other states, Packard said, she expects the appeals court to block its own decision until the Supreme Court rules.

The 7th Circuit decision came down with tremendous speed, increasing the likelihood that Wisconsin is among the states whose same-sex marriage bans make it to the Supreme Court. That's because it was issued before the beginning of the high court's term in October.

Nonetheless, the Supreme Court will likely first consider appeals from Utah and Virginia because they are further along in the appeals process, said Carl Tobias, a professor at the University of Richmond School of Law in Virginia.

So far, all appeals courts have ruled against bans since the Supreme Court last year struck down the federal Defense of Marriage Act, which prevented the federal government from recognizing same-sex marriages. Tobias said the high court may wait until an appeals court upholds a ban before deciding whether to take cases on gay marriage.

The decision for Indiana and Wisconsin is different from others because the judges based their ruling on arguments that the same-sex marriage bans violated the right to equal protection under the law, Tobias and Packard said. Other rulings have centered on the right of gay and lesbian couples to due process.

In Thursday's decision, Posner took the same outraged tone that he did in last week's oral arguments, saying that Indiana and Wisconsin were hurting the adopted children of same-sex couples without good reason. He swept aside arguments that this could be justified because it was the will of the voters.

"Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law," he said.

The ruling also dismissed the state's argument that same-sex couples should not be allowed to marry because they can't conceive children together, noting that Wisconsin and Indiana allow elderly couples to marry.

Both states also forbid first cousins to marry but make a specific exception to allow such marriages if the couples are infertile, Posner wrote.

He said the states' legal arguments were "so full of holes that it cannot be taken seriously."

And the decision similarly rejected arguments that gay marriage should be restricted because of tradition, with Posner noting cannibalism and foot-binding are long-standing traditions in some cultures. Posner said he was not considering any possible moral arguments for or against gay marriage because none was advanced by either state.

Milwaukee Catholic Archbishop Jerome Listecki, whose church holds that marriage is exclusively between a man and a woman, voiced disappointment in the decision Thursday.

"Marriage needs to be strengthened, not redefined," Listecki said in a statement. "Unfortunately, the court failed to acknowledge what the people in both Indiana and Wisconsin saw fit to underscore in their state constitutions."

Amid a wave of litigation nationally, eight same-sex couples this year sued to overturn Wisconsin's 2006 amendment to the Wisconsin Constitution banning gay marriage and civil unions. U.S. Circuit Judge Barbara Crabb in Madison agreed with them in June and struck down the ban but stayed her decision to prevent couples from marrying while state officials pursued their appeal.

Several hundred same-sex couples in Wisconsin married before Crabb issued the stay.

The Chicago-based appeals court consolidated the case with one from Indiana, where a district judge in June had ruled against that state's ban on same-sex marriage.

The 10th Circuit U.S. Court of Appeals in Denver has declared bans in Oklahoma and Utah unconstitutional. In July, the 4th Circuit in Richmond struck down Virginia's same-sex marriage ban.

Last month, the 6th Circuit in Cincinnati heard arguments in cases consolidated from Michigan, Ohio, Kentucky and Tennessee. The three-judge panel that heard the case has not yet ruled.

In a separate action Thursday, Van Hollen filed friend of the court briefs along with 16 other states asking the U.S. Supreme Court to take the Oklahoma and Utah cases and decide the issue for the nation.

Mary Burke, a Democrat who is challenging Walker in the governor's race, praised the ruling.

"I believe that every loving couple should have the freedom to marry who they choose, and I'm glad to see that this freedom will soon be available in Wisconsin," she said.

Voters in Wisconsin added the ban to the state constitution in 2006 by a vote of 59% to 41%. Since then, public sentiment has shifted in Wisconsin and nationally. For instance, a Marquette University Law School poll in July showed 56% of Wisconsinites surveyed would vote to repeal the ban.

Annysa Johnson and Georgia Pabst of the Milwaukee Journal Sentinel staff contributed to this report.

What's next

■ The states can ask the three-judge panel or the 10-member appellate court to review the decision or appeal directly to the U.S. Supreme Court.

■ The Supreme Court in coming months is expected to take up one or more of the growing numbers of cases on gay marriage that have been litigated in federal courts across the country.

About Jason Stein

Jason Stein covers the state Capitol and is the author with his colleague Patrick Marley of "More than They Bargained For: Scott Walker, Unions and the Fight for Wisconsin." His work has been recognized by journalism groups such as the American Society of News Editors, the Society of American Business Editors and Writers, and the Association of Capitol Reporters and Editors.

About Patrick Marley

Patrick Marley covers state government and state politics. He is the author, with Journal Sentinel reporter Jason Stein, of "More Than They Bargained For: Scott Walker, Unions and the Fight for Wisconsin.”